Citation Nr: 0424793
Decision Date: 09/09/04 Archive Date: 09/16/04
DOCKET NO. 96-42 160A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Catholic War Veterans of the
U.S.A.
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
The veteran served on active duty from July 1979 to July
1983; and from December 1990 to May 1991. The veteran's
service from December 1990 to May 1991 represented service in
Operation Desert Shield/Desert Storm.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of a February 1996 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in New York, New
York.
Finally, for reasons which will become apparent, this appeal
is being REMANDED to the RO via the Appeals Management Center
(AMC) in Washington, D.C. The VA will notify you if further
action is required on your part.
REMAND
The veteran in this case seeks service connection for post-
traumatic stress disorder. In pertinent part, it is argued
that while in service, the veteran was exposed to and/or
participated in a number of stressful incidents that
precipitated the development of post-traumatic stress
disorder. More specifically, it is contended that while in
service during Operation Desert Storm/Desert Shield, the
veteran witnessed the death of one Lance Corporal Jeffrey
Williams at the hands of a number of Iraqi soldiers.
In that regard, the Board observes that, based on a review of
the file, it is unclear whether the veteran's claimed
"stressor" has been submitted to the appropriate authority
for verification. Apparently, this is due at least in part
to the fact that, in the past, the veteran has failed to
provide information in sufficient detail to enable such
verification. However, the veteran has now (in
correspondence of January 1999) provided such information.
That information is to the effect that Lance Corporal Jeffrey
Williams, the soldier whom the veteran had reportedly seen
killed in action, was, at the time of his death, a member of
"Unit 2nd S.R.I.G., 8th Battalion, 2nd Division." The
veteran additionally indicated that the incident in question
had taken place during the second week of February 1991 in
Iraq, though in an unknown town. According to the veteran,
he was newly assigned to his unit, and, therefore, not
entirely certain of the dates in question.
Significantly, where the record does not contain recognized
military citations or other supportive evidence that the
veteran "engaged in combat with the enemy," (as in this
case), the United States Court of Appeals for Veterans Claims
(Court) has held that the record must contain evidence which
corroborates the veteran's statements as to the incurrence of
the claimed stressor or stressors. See Zarycki v. Brown, 6
Vet. App. 91 (1993). The case of Zarycki makes it clear that
the veteran's lay testimony in and of itself, is not enough
to establish the presence of an alleged stressor or
stressors.
The veteran argues that, as a result of the aforementioned
incident, he has developed post-traumatic stress disorder.
However, in addition to a diagnosis of post-traumatic stress
disorder, the veteran has received various other psychiatric
diagnoses, including depression with psychotic features,
schizo-affective disorder, borderline personality disorder,
post-traumatic stress disorder superimposed on a chronic
paranoid disorder, and dysthymic disorder. Such varying
diagnoses raise some question as to the exact origin of the
veteran's claimed disability. In point of fact, certain
critical elements of the diagnosis of post-traumatic stress
disorder, most fundamentally, those concerning the existence
of a stressor or stressors related to service, appear to have
been based almost solely on statements of history provided to
VA examiners by the veteran. The question of whether the
veteran was exposed to a stressor in service is a factual
determination, and VA adjudicators are not bound to accept
such statements simply because treating medical providers
have done so. Wood v. Derwinski, 1 Vet. App. 190 (1991);
Wilson v. Derwinski, 2 Vet. App. 614 (1992).
Finally, the Board notes that, in correspondence of March
1996, the veteran's accredited representative requested that
the veteran be afforded a personal hearing at the RO located
in New York, New York. In subsequent correspondence of July
1997, the veteran's accredited representative reiterated his
request for that hearing. While in a VA Certification of
Appeal dated in June 2004, it was noted that the hearing in
question had been "canceled," there is no indication that
either the veteran or his accredited representative had, in
fact, withdrawn the request for a personal hearing. In point
of fact, based on correspondence of March 1998, it would
appear that the veteran's accredited representative has only
requested that the veteran's hearing be "rescheduled." Under
such circumstances, the veteran must be given the opportunity
to present testimony before a Decision Review Officer/Hearing
Officer at the RO prior to a final adjudication of his claim.
In light of the aforementioned, the case is REMANDED to the
RO for the following actions:
1. The RO should contact the appropriate
service organization and/or records
storage facility, in an attempt to verify
that one Lance Corporal Jeffrey Williams
was killed in action in Iraq sometime
during the second week of February 1991.
In attempting such verification, the RO
should take into account that, at the
time of the aforementioned incident,
Lance Corporal Williams was a member of
the 2nd S.R.I.G., 8th Battalion, 2nd
Division. All information, when
obtained, should be made a part of the
veteran's claims folder.
2. The RO should then attempt to obtain
any pertinent VA or other inpatient or
outpatient treatment records subsequent
to May 1998, the date of the most recent
evidence of record. Once obtained, all
such evidence should be incorporated in
the veteran's claims folder. The veteran
should be requested to sign the necessary
authorization for release of any private
medical records to the VA. All attempts
to procure records should be documented
in the file. If the RO cannot obtain
records identified by the veteran, a
notation to that effect should be
inserted in the claims file. In
addition, the veteran and his
representative should be informed of any
such problem.
3. Following receipt of the
aforementioned information, the RO should
review the file, and prepare a summary of
the veteran claimed stressor(s). This
summary, and all associated documents,
should be forwarded to the Office of the
Commandant of the Marine Corps, located
at Headquarters U.S.M.C., MMSB 10, 2008
Elliot Road, Suite 201, Quantico,
Virginia 22134-5030, in order that they
might provide any information which could
corroborate the veterans' stressor(s).
4. Following the above, the RO should
make a specific determination based upon
the complete record with respect to
whether the veteran was exposed to a
stressor or stressors in service, and, if
so, the nature of the specific stressor
or stressors. Should the RO determine
that the record establishes the existence
of a stressor or stressors, the RO should
specify which stressor or stressors in
service are established by the record.
In reaching this determination, the RO
should address any credibility questions
raised by the evidence.
5. The RO should then arrange for the
veteran to be examined by a VA
psychiatrist who has not heretofore seen
or examined him. The RO should specify
for the examiner the stressor or
stressors which it has determined are
established by the record, and the
examiner must be instructed only those
events may be considered for the purpose
of determining whether exposure to a
stressor in service has resulted in
current psychiatric symptoms, and whether
the diagnostic criteria to support a
diagnosis of post-traumatic stress
disorder have been satisfied. The
examination report should reflect a
review of pertinent material in the
claims folder. The examiner should
integrate the previous psychiatric
findings and diagnoses with current
findings to obtain an accurate picture of
the nature of the veteran's psychiatric
status. The examiner should,
additionally, comment explicitly on
whether there is a link between such a
stressor or stressors and the currently
claimed post-traumatic stress disorder.
The report of the examination should
include a complete rationale for all
opinions expressed, and the claims folder
should be made available to the examiner
prior to the examination. Moreover, a
notation to the effect that a review of
the veteran's claims folder has taken
place should be included in the
examination report.
6. The veteran should then be scheduled
for a hearing before a Hearing
Officer/Decision Review Officer at the
RO. A transcript of that hearing should
be included in the veteran's claims
folder.
7. The RO should then review the
veteran's claims file, and ensure that
all notification and development action
required by the Veterans Claims
Assistance Act of 2000 (VCAA) is
complete. In particular, the RO should
ensure that the notification requirements
and development procedures contained in
38 U.S.C.A. §§ 5103, 5103A (2002), and in
38 C.F.R. § 3.159 (2003) are fully
complied with and satisfied.
8. The RO should then review the
veteran's claim for service connection
for post-traumatic stress disorder.
Should the benefit sought on appeal
remain denied, the veteran and his
representative should be provided with a
supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant action taken on the claim
for benefits since the last SSOC in
February 2004. An appropriate period of
time should be allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The veteran need take no action until otherwise
notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
KATHY A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).